Cannon v. Newport

Appeals
from the United States District Court for the Eastern
District of Wisconsin. Nos. 2:15-cv-01397-PP &
2:15-cv-01370-PP - Pamela Pepper,Judge.

Before
Wood, Chief Judge, and Posner and Hamilton, Circuit Judges.

POSNER, Circuit Judge.

Billy
Cannon appeals the dismissal of two civil rights complaints,
see 42 U.S.C. § 1983, that accuse Milwaukee police,
prosecutors, and judges of having violated his constitutional
rights during a series of investigations and prosecutions.

In 2008
a state investigator obtained from a Wisconsin court
authorization to intercept calls made to and from a telephone
number being used by suspected drug traffickers. That
telephone number was not Cannon's, but he says he was
intercepted during this wiretap. Then on March 17 of the
following year Milwaukee police obtained consent from
Cannon's son to search the home where he lived with his
father. The police found $14, 000 in cash in the home, and
arrested Cannon for drug and gun crimes on the basis of a
report by a government informant that the informant had
purchased cocaine, and borrowed a gun, from Cannon. The day
after his arrest the judge set bail for each of the crimes
charged at $2, 500. Cannon posted the required bail but was
not released because the police filed another complaint,
charging him with a third crime-giving a gun to an
unauthorized person. Wis.Stat. § 941.29(4) (2007). A
different judge reviewed that complaint the next day, found
probable cause, and set bail at $2, 500. Cannon did not post
this additional amount.

He
appeared in court on March 20, and prosecutors filed an
amended criminal complaint covering all three charges,
leading to the judge's raising Cannon's bail to $250,
000. He eventually made bail, but in August was again
arrested, this time for bail jumping after he changed his
residence without notifying the police. He was jailed, but
released a few days later without being charged.

Cannon
was finally tried in 2011, and though acquitted of the drug
charge pleaded guilty to illegal possession of the gun (the
second gun charge was dismissed) and was sentenced to two
years in prison. Just before he'd pleaded guilty,
however, a warrant had been issued for his arrest on new gun
and drug charges. Two days later a state trooper stopped him
for a traffic violation and upon learning his identity
arrested him on the outstanding warrant. Four days after that
Cannon appeared for a probable cause hearing.

In 2013
Cannon got hold of what he calls "exculpatory"
material-copies of police reports and other documents
relating to his March 2009 arrest-and on the basis of this
documentation filed suit under 42 U.S.C. § 1983 against
the police, prosecutors, and judges claiming that his
prosecutions in 2009 and 2011 had been the elements of a
conspiracy to violate his constitutional rights. That suit
was dismissed as premature, because appeals by him in both
criminal cases were pending. In 2014 he was convicted of the
2011 drug and gun charges and sentenced to 16 years'
imprisonment, a term he is currently serving.

In
November 2015 he filed the two suits, both also under 42
U.S.C. § 1983, that have given rise to the appeals
before us. In one, which focuses on the events of 2009, he
claims that Milwaukee police officers, prosecutors, and
judges violated his constitutional rights under the Fourth,
Sixth, Eighth, and Fourteenth Amendments to the Constitution-
that the police had lacked probable cause when they arrested
him in March and August 2009, that he had been denied counsel
when the first two criminal complaints were reviewed by two
different judges before he appeared in court on March 20,
2009, that the $250, 000 bail set that day had been
excessive, and that the defendants had conspired maliciously
to prosecute him. The district court dismissed the complaint
as barred by the six-year statute of limitations applicable
to section 1983 claims in Wisconsin. Wis.Stat. § 893.53;
Gray v. Lacke,885 F.2d 399, 409 (7th Cir. 1989).

Cannon
tries to sidestep the statute of limitations in three ways.
He argues that he was unaware of the violations of his rights
until he received the "exculpatory" material; that
the defendants' actions from the time of his arrest in
March 2009 until they released that material to him in June
2013 constituted a "continuing violation" of his
rights, amounting to a "custom and policy" of
unconstitutional behavior; and that a plaintiff is not
required to address in his complaint affirmative defenses to
his claims.

The
district judge was correct that Cannon's claim that the
police falsely arrested him in violation of the Fourth
Amendment is time-barred. A claim to have been arrested in
violation of the amendment accrues "at the time of (or
termination of) the violation." Dominguez v.
Hendley,545 F.3d 585, 589 (7th Cir. 2008). Cannon was
brought before a judge three days after his March 2009
arrest, and his Fourth Amendment claim accrued then because
by virtue of the arrest he was now "detained pursuant to
legal process." Wallace v. Kato,549 U.S. 384,
397 (2007). And since any violation of the Fourth Amendment
caused by his August 2009 arrest had ended when he was
released on September 3, 2009, without charges being filed,
id. at 389-90; Harrington v. City of
Nashua,610 F.3d 24, 28 (1st Cir. 2010), the latest he
could have sued concerning his two arrests were March 20,
2009, and September 3, 2015, respectively.

His
attempt to excuse his lateness is unpersuasive. Nothing in
the material he attaches to his complaint reveals
circumstances of the arrests or of the charging and bail
procedures that he wouldn't have known at the time. Nor
can he "use a theory of a continuing civil conspiracy to
recover for individual overt acts that would themselves be
time-barred." Rosado v. Gonzalez,832 F.3d 714,
718 (7th Cir. 2016). And when a complaint reveals that the
action is untimely, the court can dismiss it. United
States v. Lewis,411 F.3d 838, 842 (7th Cir. 2005).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;His
claim that he was denied counsel in violation of the Sixth
Amendment when judges reviewed the first two criminal
complaints against him has not yet accrued, because his
conviction has not been set aside. He is not allowed to seek
damages that would impugn a conviction, see Heck v.
Humphrey,512 U.S. 477, 486-87 (1994); Gilbert v.
Cook,512 F.3d 899, 900 (7th Cir. 2008), though his
claim to have been denied ...

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